: RACE, POVERTY & DISADVANTAGE

Yale University Professor Stephen B. Bright

Class Nine - Part Four: Instructions and Deliberations

Jury Instructions could consider whether the defendant was under the influence of “extreme” duress or was “ s u b s t a n t i a l l y ” i mp a i r e d d i d n o t Consideration of Aggravating unconstitutionally preclude the jury from and Mitigating Circumstances considering lesser degrees of duress or impairment where jury also instructed that it could Boyde v. California, 494 U.S. 370 (1990). The consider “any other matter.” Court held that the Eighth Amendment is not violated by a penalty phase instruction that if the Buchanan v. Angelone, 522 U.S. 269 (1998). jury concludes that aggravating circumstances The Court upheld the death sentence even though outweigh mitigating circumstances, it “shall” the court failed to instruct on mitigating impose a sentence of death. The Court also held circumstances. The Court held that the Eighth that in light of other instructions also given to the Amendment does not require that a capital jury be jury, there was no “reasonable likelihood” that instructed on the concept of mitigating evidence jurors construed an instruction to consider generally, nor that any definitional instruction be circumstances which “extenuate the gravity of given on any particular statutory mitigating crime” in a way that prevented the consideration circumstances. of relevant mitigation evidence. California v. Brown, 479 U.S. 538 (1987). The Tuilaepa v. California, 512 U.S. 967 (1994). Supreme Court held that a jury instruction, given Under California law, a person is eligible for at the penalty phase, stating that jurors “must not death penalty if found guilty of first-degree be swayed by mere . . . sympathy” or by mere accompanied by one or more statutorily sentiment, conjecture, passion, prejudice, public enumerated “special circumstances.” At the opinion or public feeling does not violate the penalty phase, the jury is instructed to consider Eighth and Fourteenth Amendment requirement other statutory factors – including the that the sentencer be allowed to consider any circumstances of the crime, the defendant’s prior relevant mitigating evidence regarding the record, and the defendant’s age – in deciding defendant’s character or record and the whether to impose death. The Court held that the circumstances of the offense. fact that jury is not instructed how to weigh the sentencing factors does not render the California Weeks v. Angelone, 528 U.S. 225 (2000). The process unconstitutional. jurors asked the trial judge during deliberations whether they were required to impose the death Consideration of penalty if they found that an aggravating factor Mitigating Circumstances had been proved beyond a reasonable doubt. The trial court referred the jury to a relevant portion of Blystone v. Pennsylvania, 494 U.S. 299 (1990). a constitutionally valid jury instruction it had The Court held that an instruction that the jury given earlier. The Court held this was sufficient

Class Nine - Part 4 (Instructions & Deliberations) 1 Prof. Bright - C apital Pu n i s h ment and that there was no duty to give additional anything about how – or even whether – the jury clarifying instructions. should make individual determinations that each particular mitigating circumstance existed. Unlike Unanimity with regard Mills, the instructions did not say that the jury to mitigating circumstances must determine the existence of each individual mitigating factor unanimously. They focused only In Mills v. Maryland, 486 U.S. 367 (1988), the on the overall balancing question. And the Court considered whether a state could require instructions repeatedly told the jury to “conside[r] jurors to be unanimous with regard to whether a all of the relevant evidence.” mitigating circumstance has been established. The argument was illustrated by a hypothetical The Court held that the instructions and verdict situation quoted by the Court in its opinion: forms did not clearly bring about, either through what they said or what they implied, the If eleven jurors agree that there are six circumstance that Mills found critical, namely, a mitigating circumstances, the result is that no substantial possibility that jurors may have mitigating circumstance is found. Consequently, thought they were precluded from considering any there is nothing to weigh against any mitigating evidence unless all 12 agreed. aggravating circumstance found and the Accordingly, it concluded that state court’s judgment is death even though eleven jurors decision upholding the instructions and verdict think the death penalty wholly inappropriate. forms was not “contrary to, or . . . an unreasonable application of, clearly established Federal law, as The Court concluded “that there is a substantial determined by the Supreme Court of the United probability that reasonable jurors, upon receiving States” in Mills. 28 U.S.C. §2254(d)(1). the judge’s instructions in this case, and in attempting to complete the verdict form as No requirement to instruct jury on instructed, well may have thought they were consequences if its members do not agree precluded from considering any mitigating evidence unless all 12 jurors agreed on the Jones v. United Stated, 527 U.S. 373 (1999). In existence of a particular such circumstance. Under this case involving the federal death penalty, the our cases, the sentencer must be permitted to defendant, Louis Jones, requested that the trial consider all mitigating evidence. The possibility judge give an instruction explaining the various that a single juror could block such consideration, possible outcomes if the jury could not reach a and consequently require the jury to impose the unanimous verdict. Most importantly, Jones death penalty, is one we dare not risk.” sought to convey that if the jurors did not agree on death, then the only sentencing option, for jury or In McKoy v. North Carolina, 494 U.S. 433 judge, would be life without possibility of release. (1990), the Court held that North Carolina’s death The trial court refused and instead, instructed the penalty statute which required sentencing to jury that it could recommend death, life without find a mitigating factor unanimously before it can possibility of release, or a lesser sentence, in consider it violated Mills. which event the court would decide what the lesser sentence would be. Jones was sentenced to In Smith v. Spisak, 130 S.Ct. 676 (2010), the death after long jury deliberations. Court reversed a decision of the Sixth Circuit that had found a Mills violation. The trial court had Jones challenged his and death instructed the jury that, in order to imposed death sentence on the basis that the jury was not it must find, unanimously and beyond a properly informed of the consequences of reasonable doubt, that each of the aggravating deadlock. He argued that the court’s charge led factors outweighed any mitigating circumstances. jurors to believe that a deadlock would result in a Neither the instructions or the verdict forms said court-imposed lesser sentence. The Supreme

Class Nine - Part 4 (Instructions & Deliberations) 2 Prof. Bright - C apital Pu n i s h ment Court affirmed his sentence and held that the that the terms and death Eighth Amendment does not require that a jury be sentence were to be understood to have their plain instructed as to the consequences of their failure and ordinary meaning. to agree. The Supreme Court reversed. Justice Blackmun In an opinion by Justice Thomas, the Court wrote the plurality opinion holding that, where declined to exercise its supervisory powers over future dangerousness is an issue, and the only the federal courts and require an instruction alternative to a death sentence is life regarding jury deadlock. The Court held that such imprisonment without the possibility of parole, an instruction has no bearing on the jury’s role in due process requires that a sentencing jury be the sentencing process and might well undermine informed that the defendant is parole ineligible. the object of the jury system: to secure unanimity The plurality found that the jury in Simmons’ case and have the jury express the conscience of the may have believed that he would be released on community on the ultimate life or death question. parole if he were not executed: The Court also determined that in Jones’s case, there was no reasonable likelihood that the jury To the extent that this misunderstanding was led to believe that he would receive a court- pervaded its deliberations, it had the effect of imposed sentence less than life imprisonment in creating a false choice between sentencing him the event they could not recommend unanimously to death and sentencing him to a limited period a sentence of death or life imprisonment without of incarceration. This grievous misperception the possibility of release. was encouraged by the trial court’s refusal to provide the jury with accurate information Parole Eligibility if regarding petitioner’s parole ineligibility, and Not Sentenced to Death by the State’s repeated suggestion that petitioner would pose a future danger to Simmons v. South Carolina, 512 U.S. 154 society if he were not executed. (1994). Jonathan Dale Simmons, tried in South Carolina in 1990, was ineligible for parole under Justices Scalia and Thomas dissented. South Carolina law because of his criminal history. During , the trial court Shafer v. South Carolina, 532 U.S. 36 (2001). forbade defense counsel from mentioning parole, South Carolina amended its capital sentencing and expressly prohibited the questioning of statute in 1996 to require capital juries to first prospective jurors as to whether they understood decide whether the State has proved beyond a the meaning of a “life” sentence under South reasonable doubt the existence of any statutory Carolina law. aggravating circumstance. If the jury fails to find an aggravating factor, it makes no sentencing During the penalty phase of Simmons’ trial, the recommendation and the trial judge sentences the State urged the jury to consider his future defendant to either life imprisonment or a dangerousness when deciding whether to sentence mandatory minimum term of 30 years. If the jury him to death or life imprisonment. The finds a statutory aggravating circumstance, it must prosecution argued to the jury that a verdict for then recommend one of two sentences – death or death would be “a response of society to someone life imprisonment without the possibility of who is a threat . . . an act of self-defense.” The parole. court refused to give the defendant’s proposed instruction that under state law he was ineligible In Wesley Aaron Shafer’s case, the trial court for parole. When asked specifically by the jury judge refused to instruct the jury about Shafer’s whether life imprisonment carried with it the ineligibility for parole if sentence to life possibility of parole, the court instructed the jury imprisonment by the jury and refused to allow not to consider parole in reaching its verdict and defense counsel to inform the jury in his closing

Class Nine - Part 4 (Instructions & Deliberations) 3 Prof. Bright - C apital Pu n i s h ment argument. Instead, the judge twice instructed the that the State did not argue future dangerousness. jury that life imprisonment meant “until the death Justices Scalia and Thomas dissented. of the defendant,” quoting from the statute. Three hours and twenty-five minutes into its sentencing Kelly v. South Carolina, 534 U.S. 246 (2002). deliberations, the jury sent a note to the trial judge One year later, the Supreme Court again reversed containing two questions: a South Carolina death sentence because of a failure to instruct the jury of the defendant’s 1) Is there any remote chance for someone ineligibility for parole. During the sentencing convicted of murder to become eligible for phase of William Kelly’s trial, the State parole? introduced evidence of that Kelly had made a knife while in prison and taken part in an escape 2) Under what conditions would someone attempt with plans to hold a female guard hostage. convicted for murder be eligible? The prosecutor’s cross-examination of a In response, the trial court judge refused defense psychologist brought out evidence of Kelly’s counsel’s motion to read the capital sentencing sadism at an early age and his current desires to statute to the jury. The statute made clear that any kill anyone who irritated him. In his closing person sentenced to life imprisonment was argument, the prosecutor spoke of Kelly as a ineligible for parole. Instead, the judge instructed “dangerous” “bloody” “butcher,” and said to the the jury again that life imprisonment means until jury, “I hope you never in your lives again have to the death of the offender, and further directed, experience what you are experiencing right now. “parole eligibility or ineligibility is not for your Being some thirty feet away from such a person. consideration.” The jury returned 80 minutes Murderer.” The trial court refused to give an later. It unanimously found an aggravating factor instruction regarding parole ineligibility because beyond a reasonable doubt and imposed the death it found the State’s evidence went to Kelly’s penalty. character and characteristics, not to future dangerousness. The South Carolina Supreme The South Carolina Supreme Court affirmed Court affirmed. Shafer’s death sentence, holding that the presence of three possible sentences in the new sentencing The United States Supreme Court reversed, scheme – death, life imprisonment without parole, finding that the Simmons required that the jury be or thirty years mandatory minimum – meant that informed of Kelly’s true parole status. The Court the Simmons rule did not apply and that jurors did also held that the fact that the jury did not ask not need to be instructed on the defendant’s parole during deliberation for further clarification ineligibility. The United States Supreme Court regarding Kelly’s eligibility for parole, as juries in reversed, finding that the new law presented the other cases had done, did not matter for the same situation as in Simmons. purposes of finding error.

Only if the jury finds an aggravating Ramdass v. Angelone, 530 U.S. 156 (2000). circumstance does it decide on the sentence. The Court held that Bobbie Lee Ramdass was not And when it makes that decision, as was the entitled to an instruction of his ineligibility for case in Simmons, only two sentences are parole because a final judgement had not been legally available under South Carolina law: entered with regard to one of the death or life without the possibility of parole. which rendered him ineligible. The jury had returned a verdict finding him guilty, but under The Court also rejected the state’s two Virginia law, a conviction does not become final additional arguments: that even if the Court found until the judge enters a final judgment of the Simmons rule to apply, the trial court’s conviction. At the time of his capital murder trial, instructions fulfilled the Simmons requirement and Ramdass had two other criminal felony cases: one

Class Nine - Part 4 (Instructions & Deliberations) 4 Prof. Bright - C apital Pu n i s h ment armed robbery for which he had been convicted parole ineligible is neither necessary nor by a jury and a final judgment of conviction had workable, and the Virginia Supreme Court was been entered, and one armed robbery for which he not unreasonable in refusing to do so. Doing so had been convicted by a jury but no final would require courts to evaluate the probability judgment of conviction had yet entered. of future events in cases where a three-strikes law is the issue. In between the jury verdict and the final judgment in the second armed robbery case, the Instruction on Commutation Power jury in Ramdass’ murder trial recommended death. Soon after, the final judgment of conviction California v. Ramos, 463 U.S. 992 (1983). entered in the second robbery case, making California law requires the trial judge in a capital Ramdass a three-strike, or three time felony case to inform the jury that a sentence of life offender, and rendering him ineligible for parole imprisonment without the possibility of parole if given a sentence of life imprisonment in the may be commuted by the Governor to a sentence capital murder trial. that includes the possibility of parole. (The instruction is called the “Briggs Instruction” The judge in the capital case held a hearing because it was proposed by a legislator named before entering a final judgment of conviction to Briggs and adopted by referendum). At the consider whether to impose the recommended penalty phase of Marcellino Ramos’s trial, the sentence. At that hearing, Ramdass argued for a judge’s instructions included the Briggs life sentence because the jury in his case had not Instruction. The jury returned a verdict of death. known that he would be ineligible for parole based on his three-strike offender status. The The California Supreme Court affirmed court sentenced Ramdass to death, and the Ramos’ conviction but reversed the sentence, Virginia Supreme Court affirmed. holding that the Briggs Instruction was unconstitutional because it injected an entirely Soon thereafter, Simmons was decided and speculative element into the capital sentencing Ramdass’ case remanded for reconsideration in decision. The California court further concluded light of Simmons. On , the Virginia that because the instruction does not also inform Supreme Court declined to apply Simmons the jury that the Governor possesses the power to because it concluded that Ramdass was not parole commute a death sentence to life, it leaves the jury ineligible when the jury was considering his with the mistaken belief that the only way to sentence because the jury verdict in the second incapacitate the defendant is to condemn him to armed robbery case did not count as a final death. conviction for purposes of the three-strikes law. Ramdass sought relief in federal court. Ultimately, The United States Supreme Court reversed in the Supreme Court affirmed the decision of the California v. Ramos, holding that the Briggs Virginia Supreme Court in Ramdass v. Angelone. Instruction did not encourage the jury to overly rely on speculative elements. The Court found that The Supreme Court held that Ramdass was not the instruction merely focused the jury on a entitled to a jury instruction regarding his parole defendant’s future dangerousness, which the eligibility. The Court refused to extend Simmons Court had already deemed acceptable in Jurek v. to cases where parole ineligibility has not been Texas (1976). Justice O’Connor, writing for the technically established at the time of jury Court, explained that “[b]y bringing to the jury’s deliberations, and deferred to the state courts on attention the possibility that the defendant may be the issue: returned to society, the Briggs Instruction invites the jury to assess whether the defendant is extending Simmons to cover situations where someone whose probable future behavior makes it it looks like a defendant will turn out to be undesirable that he be permitted to return to

Class Nine - Part 4 (Instructions & Deliberations) 5 Prof. Bright - C apital Pu n i s h ment society.” Jury Deliberations The Court also decided that the fact that under the Briggs Instruction, jurors were only made Turner v. Louisiana aware of the Governor’s ability to commute a life The Supreme Court held that Wayne Turner sentence, even though he was equally empowered had been denied right to fair trial by an impartial to commute a sentence of death, did not mislead jury when the two deputy sheriffs who gave key the jury or create any false impressions. Neutrality testimony leading to Turner’s conviction of would not be returned to a jury’s deliberations, the murder was in charge of jury during the three-day Court held, if jurors were made aware of the trial and fraternized with them outside the Governor’s ability to commute death sentences, courtroom during performance of their duties. and in fact, such information might lead jurors to Turner v. Louisiana, 379 U.S. 466 (1965). The “to approach their sentencing decision with less deputies swore that they had not talked to the appreciation for the gravity of their choice and for jurors about the case, but the Court nonetheless the moral responsibility reposed in them as held that, “even if it could be assumed that the sentencers.” deputies never did discuss the case directly with any members of the jury, it would be blinking Justices Marshall issued a dissenting opinion reality not to recognize the extreme prejudice which Justices Brennan and Blackmun joined. He inherent in this continual association * * *.” Id. at found the Briggs Instruction unconstitutional 473. because it was misleading, it invited speculation and guesswork, and it injected into the capital DEMARCUS ALI SEARS sentencing process a factor that bore no relation to v. the nature of the offense or the character of the THE STATE offender. Supreme Court of Georgia The Louisiana Supreme Court reached a 514 S.E.2d 426 (1999) different conclusion under its state constitution. It held that a statutory requirement to instruct jurors Note: Angel Fisher was the only African- on the governor’s power to grant pardon or America on the jury in this case. Demarcus Sears commutation of sentence was “arbitrarily severe, is also African-American. unnecessarily cruel and disproportionate” because it imposed a reason for the death sentence other THOMPSON, Justice. than the direct “penalty” and was therefore an A jury convicted Demarcus Ali Sears of unconstitutional violation of the defendant’s due process right to a fair trial and to humane kidnapping with bodily injury and armed robbery, treatment under the Louisiana Constitution. State and imposed a sentence of death. The evidence v. Jones, 639 So. 2d 1144, 1154 (La. 1994). adduced at trial showed that Sears and Phillip Williams kidnapped the victim, Gloria Wilbur, as she left a supermarket in Cobb County, Georgia; that Sears assaulted Ms. Wilbur with brass knuckles, put her in her car and drove north; that Sears raped Ms. Wilbur in Tennessee; and that he killed her in Kentucky by stabbing her with a knife.

* * * 1. After deliberating for approximately six hours in the sentencing phase, the jury sent the

Class Nine - Part 4 (Instructions & Deliberations) 6 Prof. Bright - C apital Pu n i s h ment trial court a note announcing that it was should listen to the arguments of other jurors. deadlocked eleven to one in favor of the death If the members of the jury differ in their penalty, and asking how it should complete the views of the evidence, or the mitigating or verdict form. Over Sears’ objection, the trial court aggravating circumstances, such differences responded to the note as follows: of opinion should cause them all to scrutinize the evidence more closely and to re-examine You all have been deliberating on this case the grounds of their opinion. It’s your duty to for six hours. I would like you all to consider decide the issues that have been submitted to continuing your deliberations and see what you you, if you can conscientiously do so. Do not can do with the case. I’m not putting any hesitate to change an opinion if you become pressure on you to [do] anything one way or convinced it’s wrong. However, you should another. Whatever your decision is, that’s never surrender honest convictions or [your] decision. But I feel like you need to opinions in order to be congenial or reach a deliberate on the case longer. verdict solely because of the opinions of other jurors. The jury resumed its deliberations and continued deliberating for another three hours. At The jury was then excused for the evening. It that point, the jury sent a second note which read: reconvened the following morning and resumed its sentencing phase deliberations. After an hour We have reviewed the case from start to and a half, the trial court informed counsel that finish and we are still deadlocked eleven to one of the jurors had been sitting in the jury room one in favor of the death penalty. All twelve with a Sony Walkman on her head; and that she jurors agree that there is a hopeless deadlock had been asked to give it to the bailiffs “so she with no hope of resolution. Deliberations have could participate in the deliberations.” The court ceased. What do we do now? All minds are also told counsel that the foreman had asked the closed. bailiffs to remove all magazines and reading material from the jury room. In addition, the court Sears urged the trial court to accept the jury’s stated that it had received two notes from the jury: “verdict” and impose a life sentence. The court one from the foreman and another from juror declined to do so. Instead, it charged the jury, in Angel Fisher. The note from the foreman, which part, as follows: contained blanks instead of personal pronouns to “protect the gender of the juror” in question, read: I believe it’s appropriate to give you some further instructions at this time. You’ve been In the jury selection process, each juror was deliberating a while, and I deem it proper to read the charges in this case. Murder was not advise you further in regards to the one of the charges. The reason that the juror desirability of agreement, if possible. This who has steadfastly maintained [ ] position case has been exhaustively and carefully tried from the outset of deliberations has given for by both sides. It has been submitted to you for [ ] decision is that [ ] cannot vote on the death a decision and verdict, if possible. While the penalty because the Defendant was not verdict must be the conclusion of each juror, convicted of murder. Can you provide the jury and not a mere acquiescence of the jurors in with a transcript of the questions and answers order to reach agreement, it is still necessary as to their position on the death penalty? We for all of the jurors to examine the issues and need to know what questions were asked and questions submitted to them with candor and how the jurors responded. We would also like fairness and with proper regard and deference for you to provide to the jury a definition of to the opinion of each other. A proper regard and the penalty for the commission of for the judgments of others will greatly aid us perjury. in forming our own judgments. Each juror

Class Nine - Part 4 (Instructions & Deliberations) 7 Prof. Bright - C apital Pu n i s h ment The note from Fisher read: statutory aggravating circumstances beyond a reasonable doubt, and sentencing Sears to death. I am concerned about the actions of the The jury was polled and each juror stated that the foreman of this jury. This letter is in reference verdict was his or her verdict and that it was freely to the foreman’s most recent letter to you. and voluntarily rendered. [The foreman] wrote this letter prior to our jury deliberations today. He informed us that Sears contends the trial court coerced the jury to he was submitting the letter to you whether render a verdict of death. * * * An examination of we wanted him to or not. I don’t think this the totality of the circumstances leads us to type of behavior is appropriate for a foreman. conclude that the verdict was not coerced by the I will not sit on a jury where I am singled out. trial court. I am not being treated fairly in this deliberating process. I am also being singled The jurors deliberated for more than fourteen out by the foreman, also he is overstepping hours over a period of three days before reaching his boundaries as a foreman of a jury. To my their verdict. Each of the jurors stood by that understanding, a foreman should be a leader, verdict, announcing, upon being polled, that they not a dictator. Please explain the duties and rendered it freely and voluntarily in the jury room, responsibilities of a jury foreman. Should he and that it was still their verdict. * * * [I]t cannot be able [to] question a juror’s response to the be said that [the instruction to the jury to try to Court during jury selection? reach a verdict] was coercive. The court made it clear that, although the jurors should consider the The trial court brought the jury in and said it opinions of other jurors, they must never had received notes from the foreman and Fisher. surrender their honest opinions for the sake of It summarized the contents of the notes, and stated expediency. that the jury should recall the previous instructions as to the imposition of the death The trial court’s other instructions, urging the penalty, aggravating circumstances, and jury to reach a consensus, and to participate in the mitigating evidence. It then informed the jury that deliberations, were not coercive either. * * * it would not read the voir dire transcript and it would not define perjury. The court went on to Although the jury twice stated that it was at an clarify the role of a foreman by stating that, eleven to one “deadlock,” the trial court was not although the foreman is responsible for leading bound by those pronouncements. * * * On the the deliberations, “in matters of voting, all jurors contrary, the trial court, in the exercise of a sound stand the same.” Finally, the court added: discretion, was required to make its own determination as to whether further deliberations A juror is responsible to deliberate in the were in order. jury deliberations. A juror is supposed to listen to his or her fellow jurors. A juror is The jury first indicated it was deadlocked after supposed to vote their ideas and positions. A only six hours of deliberation. And it announced juror is supposed to participate. It is it was deadlocked again, after just another three inappropriate for any juror to do anything hours. We cannot say that the trial court abused its other than fully participate in jury discretion in requiring the jury to deliberate deliberations. further, especially since, after the second announcement of a “deadlock,” the jury The jury was sent back to deliberate further. deliberated more than five hours before reaching Then, after two and a half hours of additional a verdict. * * * Moreover, it cannot be said that deliberations, the jury announced that it had the verdict was coerced simply because the trial reached a verdict. The jury entered the courtroom court gave [the instruction about trying to reach a and returned its verdict, finding the alleged verdict] after the jury revealed its numerical

Class Nine - Part 4 (Instructions & Deliberations) 8 Prof. Bright - C apital Pu n i s h ment division (11-1 in favor of the death penalty).1 the death penalty, and that she should be prosecuted for perjury. These statements do not Sears contends the testimony of juror Fisher, amount to juror misconduct. Compare People v. adduced upon remand, demonstrates that the Redd, 561 N.Y.S.2d 439, 440 (AD 1 Dept. 1990) actions of the trial court had a coercive effect (threats and belligerent exchanges in the course of upon her verdict. In this regard, Sears points out deliberations often accompany the heightened that Fisher testified she was afraid of being atmosphere in the jury room and are insufficient prosecuted for perjury, and she believed the trial to upset the verdict) with People v. Lavender, 502 court wanted her to change her vote because it N.Y.S.2d 439 (AD 1 Dept. 1986) (new trial singled her out by name and urged the jury to warranted where court takes no action after it is continue deliberating when it knew the nature of apprised that juror was trying to physically attack the jury’s numerical division. co-juror).

We cannot accept this contention. * * * FLETCHER, Presiding Justice, dissenting. Fisher, a school teacher, had a bachelor’s degree in criminal justice and had attended graduate Because the trial court’s instructions to the jury school. She was the lone holdout for a life during its deliberations in the sentencing phase sentence – until she changed her mind. Although were improperly coercive, I dissent. she testified that she felt bullied by the threat of perjury, she knew that she had not lied under oath. * * * She felt intense pressure from the other jurors. (“I These final two notes revealed a serious remember being yelled at basically because I was personal conflict within the jury room, which the – they were angry at me. They wanted me to evidence on remand confirmed. The foreman’s change my mind. So they were insulting my note strongly suggests a threat of a perjury character and things like that.”) Ultimately, she prosecution against the holdout juror based on her gave in to that pressure. (“I changed my mind responses during voir dire. Fisher’s note reveals because they had – I mean I was ostracized. And that she was aware of the foreman’s concerns I was just – I was basically made to change my regarding her voir dire answers and was seeking mind by the other jury members.”) Viewing some assistance from the court. The other jurors Fisher’s testimony as a whole, it is clear that she were also made aware of the perjury threat and voted for the death penalty because she felt against whom it was made when the trial court pressured to do so only as a result of the “normal revealed the contents of the notes in open court dynamic of jury deliberations.” before the whole panel and identified the holdout juror by name. 3. Sears asserts he was denied a fair trial because of two instances of alleged juror The most troubling aspect of this case is that the misconduct in the jury room: * * * (b) the trial court ignored the specter of a perjury foreman’s statement that juror Fisher should be prosecution while forcing continued deliberations. prosecuted for perjury. The trial court has a duty to respond to jury questions and provide guidance when jurors’ (b) As the deliberations became more heated, threats to one another come to its attention. Here the foreman stated that juror Fisher must have the trial court did nothing to inform the jury that been lying when she responded to voir dire it should not concern itself with perjury or other questions concerning her willingness to impose extraneous issues or that a juror’s response to voir dire questions was irrelevant to the current deliberations regarding a sentence. The statements 1. Trial courts should not, of course, inquire as to the the trial court did make provided little guidance to nature of a jury’s numerical division. And we encourage the jury. The explanation of a foreman’s duties them to inform jurors not to reveal that information.

Class Nine - Part 4 (Instructions & Deliberations) 9 Prof. Bright - C apital Pu n i s h ment was open-ended and did nothing to dispel the Fisher’s testimony on remand is illustrative of this threat of a perjury prosecution against juror problem. She testified that because the judge kept Fisher. The trial court’s response could not have sending them back for more deliberations when prevented Fisher “from abandoning an honest the judge knew the vote was 11-1 for death, she conviction for reasons other than those based (Fisher) believed the judge wanted her to vote for upon the trial or the arguments of other jurors.” death. Fisher’s testimony on remand confirms that Fisher changed her vote not because of the arguments of Another circumstance to consider is that after the other jurors related to the evidence and the the court responded to the final two notes, the jury applicable law but because of the perjury threat reached its verdict in less than four hours, which and personal insults. included a lunch break. This time period of approximately three hours is not long enough to Additionally, even though the final two notes dispel any concerns regarding coercion, especially were the third declaration of a deadlock by the in view of the fact that the jury’s deliberations for jury, the trial court returned the jury to its the previous 10 1/2 hours over three days had deliberations without making an inquiry as to produced no signs of progress. whether the jury had made any progress since its first declaration of an 11-1 split for death. The Considering the totality of these circumstances, record reveals that the trial court also failed to I conclude that the trial court’s failure to address consider whether the jurors believed that further directly the threat against the holdout juror deliberations would be of assistance, whether the coupled with its insistence that the jury continue jury was so exhausted that the minority might be deliberating without meaningful guidance resulted induced to vote for a verdict that they did not truly in a coercive effect and I would reverse and support, or the length and complexity of the trial. remand for a retrial of the sentencing phase. Instead the trial court required further deliberations without any instruction that each * * * juror listen to and consider the views of the others and that a juror should not surrender honest Lone Holdout Jailed For Contempt convictions in order to be congenial or to reach a verdict solely because of the opinions of the other Curtis Flowers has had six capital for the jurors. The failure to include these cautionary of four people at a furniture store in statements weighs in favor of a finding of Winona, Montgomery County, . The coercion. population of the county is just over 12,000. The county is 45 percent African American. Another relevant circumstance is that the jury revealed the nature of its division and the trial The first three times he was sentenced to death, court reiterated the precise division in its the Mississippi Supreme Court overturned the comments to the jury. In Brasfield v. United guilty verdicts because of prosecutorial States,13 the United States Supreme Court held misconduct. In his third trial in 2004, the that it was reversible error for a trial court to ask prosecutor exercised all 15 of his peremptory a jury the nature of its split. A rationale for this strikes to remove . The rule is that the jury’s knowledge of the judge’s Mississippi Supreme Court reversed, finding that awareness of the exact division will color the the prosecutor had violated Batson v. Kentucky. jury’s understanding of any of the judge’s Flowers v. State, 947 So.2d 910 (Miss. 2007). instructions. This danger is present even when the jury volunteers its division, as in this case. Flowers was tried a fourth time in 2007. The prosecution did not seek the death penalty and, without the exclusion of jurors who were 13. 272 U.S. 448 (1926). conscientiously opposed to the death penalty

Class Nine - Part 4 (Instructions & Deliberations) 10 Prof. Bright - C apital Pu n i s h ment during jury selection, five blacks were selected for Derrick A. POWELL and Eugenia jury service. The jury was unable to reach a POWELL, Petitioners, verdict with regard to guilt, splitting along racial v. lines with the seven white jurors voting to convict ALLSTATE INSURANCE COMPANY, and the the five black jurors voted to acquit. A Respondent. mistrial was declared. Supreme Court of Florida Flowers was tried again in 2008 before a jury of 652 So.2d 354 (1995) 11 whites and one African American. Again, the jury was unable to reach a verdict with regard to ANSTEAD, J. guilt, splitting along racial lines with the 11 whites voting to convict and the one African * * * This case arose from an automobile American, a retired school teacher, Vietnam collision between the Powells and another veteran, and football referee, James Bibbs, voting motorist (tortfeasor), in which Mr. Powell was to acquit. injured. Allstate Insurance Company (Allstate) insured the Powells with underinsured motorist After a mistrial was declared, Bibbs was hauled coverage. After recovering the liability insurance in front of the judge, harangued, threatened, policy limits of $10,000 from the tortfeasor, the arrested, led away in handcuffs, charged with Powells brought an action against their own perjury and jailed for the night with bond set at underinsured motorist coverage carrier, Allstate, $20,000. seeking to recover their remaining damages which they claimed to exceed $200,000. Bibbs, who was in his early 60s, was shocked. “The judge got real loud, and he said ‘you are Following a jury trial, Mr. Powell was awarded lying, you committed perjury’. I was disappointed, $29,320 in damages and Mrs. Powell nothing. all these years you do all these things for the The next day one of the jurors, Karen Dowding community, then you are called a liar like that out (Dowding), contacted both the Powells’ attorney in the public, it was degrading.” and the trial judge to inform them that other members of the jury had made numerous racial The perjury charge was set for trial in July, jokes and statements about the Powells throughout 2009, but was continued at that time and later the trial proceedings and during jury deliberations. quietly dropped. Mr. and Mrs. Powell are black citizens of Jamaican birth. All of the jurors are white.1 Flowers was tried a sixth time in the summer of 2010 before a jury of 11 whites and 1 black. He Based upon this disclosure, the Powells was convicted and sentenced to death. requested a new trial or, alternatively, an interview of the entire jury panel. The trial court Sources: Account by Katherine Oberembt, then held an in-court interview of Dowding, which was a Yale Law School student, who graduated in attended by both parties’ attorneys. Dowding 2012, who worked on the case for the Mississippi testified that various jurors made racial remarks Capital Defender; BBC report, Nov. 26 2009; and jokes and she believed the verdict was the , Perjury trial postponed in Flowers case, JACKSON (MS.) CLARION LEDGER, July 26, 2009. See also Six Capital Trials and Still No Justice for Curtis Flowers in Mississippi, www.secondclassjustice.com/?p=209.

1. The jurors were questioned during voir dire as to whether they could give the Powells, as Jamaican

natives, a fair trial and they agreed they could.

Class Nine - Part 4 (Instructions & Deliberations) 11 Prof. Bright - C apital Pu n i s h ment result of racial bias.2 The trial court denied both breach, if any, the [trial] court must then motions. On , * * * in a five-to-four determine whether there was a reasonable decision, the Fifth District * * * affirmed the trial possibility that the breach was prejudicial to the court’s decision * * * defendant. . . . Though a judge lacks even the insight of a psychiatrist, he must reach a Discussion judgment concerning the subjective effects of * * * objective facts without benefit of couch-interview introspections. In this In State v. Hamilton, 574 So.2d 124 (Fla.1991), determination, prejudice will be assumed in the we adopted the test used by the Fifth Circuit in form of a rebuttable presumption, and the Rodriguez y Paz v. United States, which limits the burden is on the Government to demonstrate trial court’s inquiry in jury misconduct cases to the harmlessness of any breach to the defendant.

3 objective demonstration of extrinsic factual * * * In applying this test, courts must take into matter disclosed in the jury room. Having account Florida’s Evidence Code which forbids determined the precise quality of the jury any judicial inquiry into the emotions, mental processes, or mistaken beliefs of jurors. In relevant part, this section states as follows:

2. * * * Dowding testified that various jurors had made a number of racial jokes and statements to each Upon an inquiry into the validity of a verdict other during the trial. They laughed and participated in or indictment, a juror is not competent to testify the jokes, although when challenged by her in the jury as to any matter which essentially inheres in the room, they denied they meant anything by their “jokes,” verdict or indictment. or that they were, in fact, prejudiced against Powell because of his race. Notwithstanding this evidentiary rule,4 we have permitted jurors to testify about “‘overt acts For example, Dowding testified that the juror, who which might have prejudicially affected the jury was later elected to be foreman of the jury, told an old in reaching their own verdict.’” * * * “saw” of a joke: “There’s a saying in North Carolina, hit a nigger and get ten points, hit him when he’s moving, get fifteen.” The alternate female juror supposed that because the Powells had their 3. We first announced this rule in McAllister Hotel, grandchildren living with them, their children were Inc. v. Porte, where we said: “probably drug dealers. And, everybody was like, yeah, yeah. And they were laughing.” [T]he law does not permit a juror to avoid his verdict for any reason which essentially inheres in Two men on the jury laughed about Johnson’s [a the verdict itself, as that he “did not assent to the and friend of the Powells] testimony at the trial. verdict; that he misunderstood the instructions of They pointed to the book Dowding was carrying the Court; the statements of the or the (Through A Window by Jane Goodall) which had a pleadings in the case; that he was unduly picture of chimpanzees on the cover, and made some influenced by the statements or otherwise of his sort of reference to Johnson. One said: “[a]nd Mr. fellow-jurors, or mistaken in his calculations or Johnson got out of the car and laid down on the judgment, or other matter resting alone in the pavement.” They went into hysterics. juror’s breast.”

Another juror, who had worked for IBM, told the 4. Numerous public policy reasons have been others that the turnover rate for black employees with advanced for this rule: (1) “litigation will be extended the company was twenty-five percent but only two needlessly if the motives of jurors are subject to percent for whites. He concluded blacks “didn’t work challenge,” (2) “‘preventing litigants or the public from for us as well.” Powell’s loss of wages and earning invading the privacy of the jury room,’” (3) shielding power were issues in this case. Another concluded jurors from harassment by lawyers; and (4) finality of Powell “just wants to retire.” verdicts.

Class Nine - Part 4 (Instructions & Deliberations) 12 Prof. Bright - C apital Pu n i s h ment * * * [I]n light of the strong public policy as she did. Those innermost thoughts, good and against going behind a verdict to determine if bad, truly inhere in the verdict. juror misconduct has occurred, “an inquiry is never permissible unless the moving party has But when to racial bias are made openly made sworn factual allegations that, if true, would among the jurors, they constitute overt acts of require a trial court to order a new trial using the misconduct. This is one way that we attempt to standard adopted in Hamilton.” * * * draw a bright line. This line may not keep improper bias from being a silent factor with a Similarly, any receipt by jurors of particular juror, but, hopefully, it will act as a prejudicial nonrecord information constitutes check on such bias and prevent the bias from an overt act. Accordingly, it is subject to being expressed so as to overtly influence others. judicial inquiry even though that inquiry may not be expanded to ask jurors whether We also find the conduct alleged herein, if they actually relied upon the nonrecord established, to be violative of the guarantees of information in reaching their verdict. * * * both the federal and state constitutions which [T]he case law on this topic allows inquiry ensures all litigants a fair and impartial jury and only into objective acts committed by or in equal protection of the law. the presence of the jury or a juror that might have compromised the integrity of the The issue of racial, ethnic, and religious bias in fact-finding process. the courts is not simply a matter of “political correctness” to be brushed aside by a Under this test: thick-skinned judiciary. Rather, we agree with Judge Tuttle’s opinion in United States v. Heller, [T]he moving party first must establish 785 F.2d 1524 (11th Cir.1986), regarding this actual juror misconduct in the juror issue: interview. Once this is done, the party making the motion is entitled to a new trial Despite longstanding and continual unless the opposing party can demonstrate efforts, both by legislative enactments and that there is no reasonable possibility that the by judicial decisions to purge our society of juror misconduct affected the verdict. the scourge of racial and religious prejudice, both and anti-Semitism remain ugly * * * malignancies sapping the strength of our body politic. The judiciary, as an institution * * * At issue is whether [statements of racial or given a constitutional mandate to ensure ethnic bias made by jurors] fall into the category equality and fairness in the affairs of our of overt juror misconduct which may be the country when called on to act in litigated subject of inquiry after a verdict is returned, or cases, must remain ever vigilant in its whether such conduct “inheres in the verdict” as responsibility. The obvious difficulty with a “matter resting alone in the juror’s breast.” prejudice in a judicial context is that it prevents the impartial decision-making that In the instant case, we find the alleged racial both the Sixth Amendment and fundamental statements made by some of the jurors to fair play require. A racially or religiously constitute sufficient “overt acts” to permit trial biased individual harbors certain negative court inquiry and action. * * * [I]t would be stereotypes which, despite his protestations improper, after a verdict is rendered, to to the contrary, may well prevent him or her individually inquire into the thought processes of from making decisions based solely on the a juror to seek to discover some bias in the juror’s facts and law that our jury system requires. mind, like the racial bias involved here, as a The religious prejudice displayed by the possible motivation for that particular juror to act jurors in the case presently before us is so

Class Nine - Part 4 (Instructions & Deliberations) 13 Prof. Bright - C apital Pu n i s h ment shocking to the conscience and potentially so Other Decisions Regarding damaging to public confidence in the equity Racial Prejudice of Jurors of our system of justice, that we must act decisively to correct any possible harmful A Florida Court of Appeals applied Powell the effects on this appellant. same year it was decided in Wright v. CTL Dist., Inc., 679 So.2d 1233 (Fla. Dist. Ct. App. 1995). In We can hardly improve on this commentary. that case, a juror contacted counsel and disclosed racial bias during jury deliberations. The trial The founding principle upon which this nation court denied a retrial and, in the alternative, juror was established is that all persons were initially interviews. The Court of Appeals remanded the created equal and are entitled to have their case for further inquiry, which revealed some individual human dignity respected. This corroboration of the racist comments and jokes guarantee of equal treatment has been carried that were made in deliberation. Upon a second forward in explicit provisions of our federal and appeal, the Court of Appeals reversed and state constitutions. It is not by chance that the remanded the case for a new trial, noting “the words “Equal Justice Under Law” have been judiciary can, should, and indeed must take action placed for all to see above the entrance to this to ensure that . . . individuals do not feel free to nation’s highest court. If we are to expect our openly express such biases and prejudices, and to citizens to treat one another with equal dignity and thereby infect the fairness of the very process respect, the justice system must serve as the great which it is their sworn duty to uphold.” Id. at example of maintaining that standard. And while 1235. we have been far from perfect in implementing this founding principle, our initial declaration and In People v. Estella, 874 N.Y.S.2d 353 (N.Y. our imperfect struggle and efforts have served as Crim. Ct. 2009), the Assistant District Attorney a beacon for people around the world. reported after trial that one juror told her that he “guessed he ‘based his decision on race.’” The It is with great dismay then that we must court conducted a hearing where the evidence acknowledge, more than two hundred years after reveled that the juror had an alcohol problem that declaring this truth to the world, that there are still inhibited his ability to competently sit on the jury. those among us who would deny equal human The verdict was set aside and a retrial ordered. dignity to their brothers and sisters of a different color, religion, or ethnic origin. The justice Johnny Bennett, an African American who was system, and the courts especially, must jealously sentenced to death in South Carolina, petitioned guard our sacred trust to assure equal treatment the South Carolina Supreme Court for review the before the law. We attempt to uphold that trust application for state post-conviction relief that is today. based on one juror’s statement that Bennett had committed the crime “because he was just a dumb Accordingly, we approve the Sanchez opinion nigger.” In a hearing before the trial court, the and quash the Fifth District’s decision and remand juror admitted using the racial slur as well as with instructions for the trial court to conduct an using it with “dumb” on previous occasions.5 appropriate hearing to ascertain whether racial statements were made as asserted. If the trial The trial judge, in an order prepared by the court determines that such statements were made, Assistant Attorney General representing the State, it shall order a new trial. rejected the claim, finding that Bennett failed to

5. Petition for Certiorari to the South Carolina Supreme Court in Bennett v. State, No. 2006-CP-32-3221 (Oct. 7, 2010) at 3-4, 8-9.

Class Nine - Part 4 (Instructions & Deliberations) 14 Prof. Bright - C apital Pu n i s h ment establish that the juror “was actually biased when he was a member of the jury” and downgrading the racist epithet to “a poor choice of words.”6

There were other racial issues in Bennett’s trial as well. He was sentenced to death by a mixed race jury in 1995, but that sentence was reversed on appeal. He was sentenced to death a second time by an all-white jury in 2000. The same prosecutor represented the State at the two trials, but took a very different approach in the second trial before the all-white jury. In the second trial, the prosecutor called Bennett an animal and resorting to other dehumanizing references.7 He also called five witnesses to describe a fight involving Bennett and two young white men. The witnesses did not refer to the fighters by name, but by race, referring to the “white males” seventeen times and the “black male” thirteen times.8

6. Id. at 4-6.

7. Id. at 14-20.

8. Id. at 16.

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